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Initial Interest Confusion: Standing at the Crossroads of Trademark Law

While the benchmark of trademark infringement traditionally has been a demonstration that consumers are likely to be confused by the use of a similar or identical trademark to identify the goods or services of another, a court-created doctrine called initial interest confusion allows liability for trademark infringement solely on the basis that a consumer might initially be interested, attracted, or distracted by a competitor's, or even a non-competitor's, product or service. Initial interest confusion is being used with increasing frequency, especially on the Internet, to shut down speech critical of trademark holders and their products and services, to prevent comparative advertisements and to otherwise limit information and choices available to consumers.

Contemporary trademark law is at a crossroads and the initial interest confusion doctrine stands at the center of this intersection. This article uses the troublesome doctrine as a prism to analyze three crucial issues that will decide the future of trademark law: The first is whether it is ever acceptable to trade off of the goodwill established by another. The second is whether trademark protection primarily serves to protect consumers from being duped by unethical competitors, or instead primarily serves to bolster the business of individual trademark holders. Finally, the article considers the fundamental question: are trademarks and trademark infringement actions about protecting property rights or about providing more limited rights akin to tort and unfair competition actions? The answers to these questions lead to the conclusion that the initial interest confusion doctrine must be eliminated and trademark infringement returned to its origins as a narrow cause of action primarily directed at protecting consumers from deceptive business practices.